Congressional Record: July 31, 2003 (Senate)
Page S10621-S10687


      By Mr. BINGAMAN (for himself and Mr. Graham of Florida):
  S. 1517. A bill to revoke and Executive Order relating to procedures 
for the consideration of claims of constitutionally based privilege 
against disclosure of Presidential records; to the Committee on 
Governmental Affairs.
  Mr. BINGAMAN. Mr. President, I rise today with my colleague from 
Florida, Senator Graham, to introduce a very simple piece of 
legislation that would revoke President Bush's Executive Order 13233 
and put back in force President Reagan's Executive Order 12667--
restoring the American people's access to Presidential papers. This 
bill is the companion to H.R. 1493, which is sponsored by 
Representative Doug Ose and has enjoyed bipartisan support in the 
  Twenty-five years ago, this body passed the Presidential Records Act 
and declared that a President's papers were the property of the people 
of the United States of America and were to be administered by the 
National Archives and Records Administration, or NARA. The Act provided 
that Presidential papers would be made available twelve years after a 
President left office, allowing the former or incumbent President the 
right to claim executive privilege for particularly sensitive 
documents. In order to fulfill that mandate, President Reagan in 1989 
signed Executive Order 12667, which gave the former or incumbent 
President thirty days to claim executive privilege.
  However, in 2001, President Bush signed Executive Order 13233, 
nullifying President Reagan's order and imposing new regulations for 
obtaining Presidential documents. President Bush's new order greatly 
restricts access to Presidential papers by forcing all requests for 
documents, no matter how innocuous, to be approved by both the former 
President and current White House. In this way the order goes against 
the letter and the spirit of the Presidential Records Act by requiring 
the NARA to make a presumption of non-disclosure, thus allowing the 
White House to prevent the release of records simply by inaction.
  The President's order also limits what types of papers are available 
by expanding the scope of executive privilege into new areas--namely 
communications between the President and his advisors and legal advice 
given to the President. Also, former Presidents can now designate third 
parties to exercise executive privilege on their behalf, meaning that 
Presidential papers could remain concealed many years after a 
President's death. These expansions raise some serious constitutional 
questions and cause unnecessary controversy that could end up 
congesting our already overburdened courts. My legislation simply seeks 
to restore a legitimate, streamlined means of carrying out this body's 
wishes--making Presidential records available for examination by the 
public and by Congress.
  The administration shouldn't fear passage of this bill. Any documents 
that contain sensitive national security information would remain 
inaccessible, as would any documents pertaining to law enforcement or 
the deliberative process of the executive branch. Executive privilege 
for both former and current Presidents would still apply to any papers 
the White House designates. With these safeguards in place, there is no 
reason to further hinder access to documents that are in some cases 
more than twenty years old.
  By not passing this bill, the Congress would greatly limit its own 
ability to investigate previous administrations, not to mention limit 
the ability of historians and other interested parties to research the 
past. Knowledge of the past enriches and informs our understanding of 
the present, and by limiting our access to these documents we do both 
ourselves and future generations a great disservice. Numerous 
historians, journalists, archivists and other scholars have voiced 
their disapproval of Executive Order 13233 because they understand how 
important access to Presidential papers can be to accurately describing 
and learning from past events. We here in the Congress cannot afford to 
surrender our ability to investigate previous Presidential 
administrations because doing so would remove a vitally important means 
of ensuring Presidential accountability.
  I believe it is time for these documents to become part of the public 
record. I believe in open, honest, and accountable government, and I do 
not believe in keeping secrets from the American people. The 
Presidential Records Act was one of this country's most vital post-
Watergate reforms and it remains vitally important today. In these 
times when trust in government is slipping more and more every day, we 
need to send a statement to the American people that we here in 
Washington don't need to hide from public scrutiny--that instead we 
welcome and encourage public scrutiny. This bill will send just such a 
  I ask unanimous consent that the text of the bill be printed in the 
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1517

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,


       Executive Order number 13233, dated November 1, 2001 (66 
     Fed. Reg. 56025), shall have no force or effect, and 
     Executive Order number 12667, dated January 18, 1989 (54 Fed. 
     Reg. 3403), shall apply by its terms.